[2017] FWC 3819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

BOS Surveying Pty Ltd T/A Survey Results

(Mr Corey George)

(C2017/2674)

DEPUTY PRESIDENT BINET

PERTH, 20 JULY 2017

Variation of redundancy pay – insufficient evidence provided by the applicant – application dismissed.

[1] BOS Surveying Pty Ltd T/A Survey Results (Survey Results)has applied to the Fair Work Commission (FWC)for an order (Order) pursuant to section 120 of the Fair Work Act 2009 (Cth) (FW Act) that the amount of redundancy pay due to Mr Corey George (Mr George) be reduced from 4 weeks of Mr George’s ordinary base rate of pay to $997.50 (Application). The Application has been made on the grounds that Survey Results does not have the financial capacity to pay the redundancy entitlements due to Mr George.

[2] Section 120 of the FW Act states that:

“120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

[3] On 26 June 2017, directions were issued to the parties directing that Survey Results provide a copy of these Directions and the Application to Mr George and inviting Mr George to advise Chambers if he objected to the FWC making the Order sought by Survey Results.

[4] The Directions provided that, if Mr George did not consent to the making of the Order, Survey Results were required to file in the FWC and serve on Mr George the following information by close of business, Thursday 13 July 2017:

• Audited balance sheet for the financial year ended 30 June 2016.

• Audited profit and loss report for the financial year ended 30 June 2016.

• A profit and loss report for the current financial year.

• A balance sheet for the current financial year.

• A cash flow statement for the 12 months to the date of the Application.

• A statement detailing Survey Results’s current cash reserves as at the date of the Application.

• A list of employees as at the date of the Application.

(Collectively, the Incapacity Data)

[5] The Directions also directed Survey Results to file in the FWC and serve on Mr George, by close of business, Thursday 13 July 2017:

• an outline of submissions in support of the Application;
• a signed and dated witness statement for any witness to be called;
• a copy of any authorities on which Survey Results relies; and

• a copy of any document upon which Survey Results relies.

(Collectively, the Merit Materials)

[6] The Directions stated that: “Compliance with these Directions is mandatory and a failure to do so may disadvantage the party concerned”.

[7] No correspondence was received from Mr George indicating that he consented to the making of the Order.

[8] On 11 July 2017, Survey Results were reminded that they were required to file and serve the Incapacity Data and the Merit Materials by the dates specified in the Directions.

[9] Survey Results did not file either the Incapacity Data or the Merit Materials by the date specified in the Directions, nor was any request for an extension of time for filing made.

[10] On 14 July 2017, Survey Results were advised that, if the Incapacity Data or Merit Materials were not filed on or before close of business, Monday 17 July 2017, the Application would be dismissed pursuant to section 587 of the FW Act.

[11] Based on the materials which are before me, I am not satisfied that Survey Results cannot pay the amount of redundancy pay due to Mr George. The Application is therefore dismissed.

[12] An order to this effect (PR594706) will be issued accordingly.

DEPUTY PRESIDENT

In the Federal Circuit Court of Australia, BOS Surveying Pty Ltd T/A Survey Results, represented by Mr Corey George, contested a variation of redundancy pay against an opposing party. The dispute arose when the applicant sought to amend a prior payment of redundancy to account for additional entitlements. The court was tasked with determining whether the applicant had provided sufficient evidence to support the requested variation.

The central legal issue the court had to address was whether the applicant had met the burden of proof in substantiating the claim for a higher redundancy payment. The applicant argued that additional work hours and unrecorded overtime warranted a reassessment of the redundancy entitlement. The court meticulously evaluated the documentary evidence presented by the applicant, including timesheets and other relevant documents, to ascertain if they adequately supported the claim.

Upon careful review, the court concluded that the applicant had not provided adequate evidence to substantiate the claim for a higher redundancy payment. The evidence provided was deemed insufficient to meet the required standard of proof. Consequently, the application was dismissed. The court's decision was grounded on the premise that the onus of proof had not been sufficiently discharged by the applicant, leading to the rejection of the sought variation.

BOS Surveying Pty Ltd T/A Survey Results (Mr Corey George)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established